R. v. Trudzik, 2011 ABQB 484

Court of Queen ’ s Bench of Alberta Citation: R. v. Trudzik, 2011 ABQB 484 Date: 20110725 Docket: 110536273P1 R egistry: Edmonton Between: Her Majesty the Queen - and - Matthew Trudzik Accused Restriction on Publication: By Court Order, the evidence taken, the information given, the representations made and these reasons for decision may not be published, broadcast, or transmitted in any manner, until the accused is discharged after the preliminary hearing, or, if the accused is committed to stand trial, until the end of the trial. See the Criminal Code , s. 517.

Editorial Notice: The restriction ended on March 7, 2014. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Brian R. Burrows _______________________________________________________ [ 1 ] Matthew Trudzik is charged with the second degree murder of Dale Kirby on May 8, 2001. He applies for judicial interim

release pending his trial. [ 2 ] The Crown opposes and submits that Mr. Trudzik has not shown that his detention pending trial is not necessary to ensure, first, his appearance in court in the proceedings relating to the charge and, second, for the protection or safety of the public. [ 3 ] The Crown alleges the following facts. [ 4 ] On May 8, 2011 Mr. Trudzik and Mr. Kirby were both staying with a friend in Whitecourt, Alberta. The Crown alleges they were both involved in the drug culture. They went from the friend ’ s house to a convenience store. They stopped to visit someone on the way.

That person has told police that they were both “ in bad shape ” at the time. The police understand that to mean that the person thought they were both under the influence of drugs. [ 5 ] Video from the store shows them there. The route between the friend ’ s house and the store includes a path through the bush. Mr. Kirby ’ s body was found several hours (Mr. McConnell indicated it was at least 12 hours and Mr. Clifton did not dispute that) after the two left the store near the path.

His wallet was missing as were other items he was known to have had in his possession. [ 6 ] Later autopsy discovered 55 knife wounds to his body – a mixture of stabs and cuts to his face, neck, chest, back, arms and hands. Either of two of the stab wounds were of such a nature as to cause his death. [ 7 ] Mr. Trudzik arrived at a friend ’ s place dirty and covered in blood. This was not the place he had been staying, it was a different friend. He stored his quad at this friend ’ s place. He cleaned up. He told friends that he had killed Mr. Kirby in self-defence. He said they had argued about cigarettes.

He said he had pulled Mr. Kirby ’ s body off the path. He said the knife was “ long gone ” . Taking his dirty clothes with him he left on his quad. [ 8 ] The next day he appeared at his mother ’ s place of employment injured and advised her that he had crashed his quad. He also told her he had been involved in the Kirby matter. His mother took him to hospital and informed the police of what he had told her. [ 9 ] Police have not found the clothes Mr. Trudzik took with him on the quad or the knife or Mr. Kirby ’ s wallet or other possessions. [ 10 ] Mr.

Clifton for the Crown submits that detention is required on the ground set out in s. 515(10)(a) (ie that his detention is necessary to ensure his attendance in court in order to be dealt with according to law). He submits that Mr. Trudzik ’ s involvement in the drug culture, his erratic behaviour on May 8 and 9, the fact that if convicted he faces a lengthy period of incarceration and the fact that prior to the involvement of his mother, he fled and hid evidence, combine to compel that conclusion. [ 11 ] Mr.

Clifton also submits that detention is required on the basis set out in s. 515(10)(b) (ie that his detention is necessary for the protection or safety of the public including any witness having regard to the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice). He submits that given that Mr. Trudzik disposed of his bloody clothes and the knife there is a substantial likelihood he will, if not detained, interfere further with the administration of justice.

He submits on the same basis that there is a significant risk to witnesses, that is, the persons he told he had fought with and killed Mr. Kirby. He advises that Mr. Kirby ’ s family members, who I gather live in the area, are in fear of Mr. Trudzik. They consider him erratic and unpredictable. [ 12 ] Mr. Clifton acknowledges that Mr. Trudzik, who is 27 years old, has no relevant criminal record. He was convicted in August 2008 of impaired driving and was fined $1200. That is his only previous conviction. He advised that at the time of Mr. Kirby ’ s death, Mr.

Trudzik was separated from the woman with whom he had been in a relationship, had been evicted from his residence for drug use, and was unemployed. All of these features, he submitted, add to the risks he presents if not detained pending trial.

[ 13 ] Mr. McConnell for Mr. Trudzik submitted that detention is not justified. [ 14 ] He pointed out that there was absolutely nothing found at the place where Mr. Kirby ’ s body was found linking Mr. Trudzik to the killing. There was no trace of Mr. Trudzik ’ s blood. There was no property belonging to Mr. Trudzik. Nothing connects Mr. Trudzik to Mr. Kirby ’ s death other than the fact they were together in the area at least 12 hours before Mr. Kirby ’ s body was found and the statements of three persons. He noted further that the path near which Mr.

Kirby ’ s body was found is not accurately described as a path through the bush. It is a path that connects a residential area in Whitecourt with a commercial area. It is used by many people often. [ 15 ] The police say that three persons who they interviewed said that Mr. Trudzik said he killed Mr. Kirby in self-defence. Mr. McConnell noted that these statements are “ will say ” statements. They are neither sworn nor recorded. The witnesses all acknowledge in the statements that they are drug users. Mr. McConnell submits that a case founded on little more than this evidence is not a strong case.

He further submits that if the evidence of these witnesses were given credit, it would be difficult for the Crown to both rely on it and disprove the elements of self-defence. [ 16 ] In that context, Mr. McConnell also challenged Mr. Clifton ’ s submission that the high number of wounds found on Mr. Kirby ’ s body is inconsistent with self-defence. He noted that the “ will say ” statements indicate that Mr. Kirby was known to be a violent man and that he always carried a knife. Mr. Trudzik had no reputation for violence and did not carry a knife. He submitted that the wounds on Mr.

Trudzik ’ s hand, if they were suffered in an altercation with Mr. Kirby, were more serious than Mr. Clifton suggested and were consistent with him having defended himself. [ 17 ] Mr. McConnell also challenged the Crown ’ s allegation that Mr. Trudzik was involved in the drug culture. He observed that the Crown cites no significant evidence in that regard. He submits that having friends who are admitted drug users and having appeared to be “ in bad shape ” to someone he visited that day, does not provide a solid basis for concluding that Mr.

Trudzik, by reason of habitual drug use, presents a significant flight or public safety risk. Mr. Trudzik specifically denied that he had been evicted from his residence for drug use. [ 18 ] Mr. Trudzik is the father of two children. He has shared custody and wishes to be as involved as the circumstances allow in parenting his children. He has considerable support from friends who consider the acts alleged against him to be totally inconsistent with his character and have provided letters to that effect. He normally works in the oil industry, but was unemployed at the time of Mr.

Kirby ’ s death because he was awaiting surgery on his arm which he has not yet had. He also injured his back in a quad accident and requires medication for that. [ 19 ] He also has the support of his parents who are long time residents of the area and whose home is in the country a significant distance from Whitecourt. Mr. Trudzik ’ s father works in the oil industry. His mother volunteers at a women ’ s shelter in Whitecourt.

His parents are prepared to have their son live in their home pending his trial and, if he is released, will undertake to report to police immediately if they become aware that he is in breach of any of the terms of his bail. [ 20 ] Having considered these submissions I have find that Mr. Trudzik has established that his detention is not required for either of the reasons submitted by the Crown. [ 21 ] As to the concern that unless detained he would not appear in Court, there is nothing in his history to support that conclusion.

The suggestion that his behaviour is erratic and unpredictable because he is a drug user cannot be accepted. The circumstances disclosed to me do not justify the conclusion that he is a drug user. The suggestion that his behaviour after Mr. Kirby ’ s death, and the possible penalty he faces, justify the conclusion that he is a significant flight risk requires more reliance on the Crown ’ s description of the unsworn will-say statements of witnesses of questionable reliability than in my view is reasonable.

In any event, if he did flee on May 8, as suggested, he also returned on May 9 and, through his mother ’ s involvement, went into custody. I am satisfied that any flight risk can be sufficiently reduced by the conditions of release I will impose. [ 22 ] As to the concern that unless detained he presents a risk to public safety, in my view the fact that at age 27 he has no relevant criminal record and has strong parental support justifies the conclusion that the risk is not so great that it cannot be satisfactorily reduced by the conditions I will impose.

[ 23 ] I grant Mr. Trudzik judicial interim release. I direct that he be released from custody pending his trial upon depositing $2000 cash bail and entering a recognizance with the following conditions: 1. He shall report within 24 hours of his release to a bail supervisor and shall thereafter report further to that bail supervisor or such other bail supervisor as may be assigned in the manner and with the frequency directed by the bail supervisor responsible for the supervision of his bail. 2.

He shall report within 7 days of his release to the RCMP detachment in Whitecourt and thereafter, in person, on the day of the week and at the time directed by the head of that detachment or his or her delegate. 3. He shall reside only at the residence of his parents, the address of which is to be set out in the formal order. 4.

He shall comply with the following curfew: He will remain on the property on which his parents ’ residence is located at all times unless he has prior written permission from his bail supervisor to be absent from that property for the purposes of employment, travel to and from his place of employment, receiving medical attention, consulting with legal counsel, attending at the RCMP detachment or his bail supervisor ’ s office to report pursuant to this order, attending court, or any other reasonable purpose.

When absent from the property he shall carry on his person a copy of this order and a copy of the written permission of his bail supervisor granted pursuant to this condition at all times. 5. He shall maintain an accurate written log of all absences from his parents ’ property pursuant to condition #4 showing the date, time of leaving the property, time of return to the property, and purpose of the absence. He shall record each absence within 1 hour of his return to the property following such absence.

He shall produce the log to the RCMP officer at the time of each weekly reporting pursuant to condition #2 and shall ask the officer to whom he reports to endorse the log to confirm that it was produced as required by this condition. 6. He shall abstain from the possession and consumption of alcohol and from the possession or use of any drug other than a drug prescribed by his physician.

He shall provide a list of all drugs that are prescribed for his use to his bail supervisor when reporting on either the first or second occasion pursuant to condition #1 and within 48 hours of any new prescription having been obtained. 7. He shall possess no firearms. 8. He shall possess no cellular phone. 9. He shall not use e-mail or any internet social media. 10. He shall have no contact or communication direct or indirect with any member of the family of Dale Kirby or with any of the witnesses whose names shall appear in the formal order. 11.

He shall file with his bail supervisor on the occasion of his first reporting under condition #1 and with the RCMP in Whitecourt on the occasion of his first reporting under condition #2 an undertaking signed by his father and an undertaking signed by his mother in which undertakings they confirm that they have read and understand the conditions of his bail and that they will notify the RCMP in Whitecourt immediately upon learning or suspecting that he has breached or may have breached any condition of his bail.

The signatures of his parents on their respective undertakings shall be witnessed and the witness shall swear an affidavit of execution which shall be attached to the undertaking. [ 24 ] As neither counsel is in Edmonton, if either wishes to suggest any addition or alteration to any of these conditions before the formal order is prepared, they may arrange to address their proposal with me by conference telephone call.

Heard on the 22 nd day of July, 2011. Dated at the City of Edmonton, Alberta this 25 th day of July, 2011. Brian R. Burrows J.C.Q.B.A. Appearances: David Clifton for the Crown Larry E. McConnell, Q.C. for the Accused